A STEP-BY-STEP GUIDE TO COMPLETING FOIA REQUESTS …

1 Practice Advisory | December 2021 A STEP-BY-STEP GUIDE to COMPLETING foia REQUESTS with DHS |DECEMBER 2021 1 I. Introduction The freedom of information Act ( foia ) entitles every person access to certain information from the federal A person can file a request under this act, called a foia request, to any federal agency to request documents about themself or others. A foia request can be an invaluable tool in immigration law to help noncitizens and their representatives. There are many reasons a person may want to see documents that the government has. When the person is applying for an immigration benefit or fighting removal, it is not only helpful, but also often critical to the success of the person s case to have a copy of certain documents.

2 For example, they might need to see a paper trail of their previous immigration history to help piece together what happened, assess risks of applying for benefits, or determine what relief might be possible. The Department of Homeland Security (DHS) is often the most important federal agency for immigration practitioners and their clients to target with a foia request because DHS has many components that deal exclusively with immigration. The most important components for immigration purposes are Citizenship and Immigration Services (USCIS); Customs and Border Protection (CBP); Immigration and Customs Enforcement (ICE); and Office of Biometrics Identity Management (OBIM, formerly Visitor and Immigration Status Indicator Technology (US-VISIT)).

3 2 There are several other DHS components that may be of interest to practitioners, depending on the purpose of their foia request, including the Office of Civil Rights and Civil Liberties, and the Office of the Inspector DHS keeps lots of information about noncitizens, including an immigration file (also known as an A-file ) on all immigrants with whom it comes into contact. Any person, regardless of immigration status, is entitled under foia to request a copy of their immigration records from any of the DHS 1 freedom of information Act, 5 552. 2 Dep t of Homeland Sec., DHS Public Organizational Chart, (last visited Nov. 2021).

4 3 The DHS Office of Civil Rights and Civil Liberties internally investigates complaints from the public against any office of DHS and performs inspections of ICE and CBP detention facilities. An overview is available at (last visited Nov. 2021). The Office of the Inspector General is responsible for investigating systemic problems, fraud, waste, and abuse in any DHS component, including ICE and CBP. The Inspector General also investigates detention conditions. To see a list of the typical reports and audits that the office conducts, review (last visited Nov. 2021). These DHS offices can receive a foia request through their respective foia processes.

5 To make a foia request to the DHS Office of Civil Rights and Civil Liberties, please see the contact information under Office for Civil Rights and Civil Liberties (CRCL) at To make a foia request to the Office of Inspector General, please see: 4 Because the process for submitting REQUESTS can differ among DHS components, be sure to visit the relevant agency s website for the most up-to-date information . A STEP-BY-STEP GUIDE TO COMPLETING foia REQUESTS WITH DHS Practice Advisory | December 2021 A STEP-BY-STEP GUIDE to COMPLETING foia REQUESTS with DHS |DECEMBER 2021 2 This practice advisory will walk through how to file a foia request with USCIS, CBP, ICE, and OBIM because they are the main federal components that keep immigration records.

6 Note, however, that an individual may file a foia request with any federal government agency. Depending on the case, you may want to file a foia request with the Department of State (for passport records)5 or the Department of Justice (for immigration court records). For a detailed discussion of foia REQUESTS , see the ILRC s manual, foia REQUESTS and Other Background Checks, available at PRACTICE TIP: Because each component within DHS is responsible for responding to REQUESTS for its own records, it is important to determine which component is likely to have the records sought and direct the request to that component. For example, if requesting a copy of a green card application, submit the foia to USCIS.

7 However, if you are looking for more information about an expedited removal at the border, then submit to CBP and/or OBIM. In some cases, it may be best to submit REQUESTS to multiple components because of differences in processing times and variation in thoroughness of responses. Likewise, submitting multiple foia REQUESTS to various agencies can help gain a full picture of the subject s immigration history. information from one source can help explain a response from another source. Sometimes it can be complicated to determine which agency or component has the records sought. To help make this determination, USCIS provides a list of records/request types, and the agency that is likely to keep those records.

8 The list is available on the USCIS foia website under Where to Make Your Request at All foia REQUESTS to DHS must be made in writing, or online where permitted. The statute requires only that the requester reasonably describe the records DHS regulations provide more specifics: To the extent possible, requesters should include specific information that may assist a component in identifying the requested records, such as the date, title or name, author, recipient, subject matter of the record, case number, file designation, or reference number. 7 The written request should also state specifically that it is a records request under foia , and provide contact information for the requester.

9 If a requester does not provide sufficient information , the component may request additional information , or the request may be administratively created a form (Form G-639, freedom of information / Privacy Act Request), to help people make their REQUESTS . 9 Form G-639 may be used to make a foia request to USCIS, ICE, and OBIM (but not CBP). However, Form G-639 is not required, and it asks the requestor to provide more information than is required under the law. Some practitioners choose to submit a request by letter instead. A letter may be preferable in cases where you do not wish to disclose much information about the client, as the G-639 has many questions seeking personal and biographical information about the subject.

10 Other practitioners use G-639 where it is accepted. A foia response may take less time and be more complete if you submit it using the standardized form or an online form because these options help ensure that the necessary information is provided. Online filing can be speedier than foia submission by postal mail because governmental mail processing can delay receipt of forms for several weeks. See below for guidance if choosing to submit a foia request through an online portal, which often requires more information than necessary. Note that the law requires that agencies respond to foia REQUESTS within twenty business days, unless there are unusual circumstances.